Carissa Byrne Hessick on the Myth of Common Law Crimes

In this episode, Carissa Byrne Hessick, Ransdell Distinguished Professor of Law and Director of the Prosecutors and Politics Project at the University of North Carolina School of Law, discusses her article "The Myth of Common Law Crimes," which will appear in the Virginia Law Review. Hessick argues that there are two myths about "common law crimes" - first, that they no longer exist, and second, that they are inferior to codification. She points out that our criminal justice system is rife with literal and de facto common law crimes. Not only do many states still recognize common law crimes or incorporate them into their criminal codes, but also broadly drafted and interpreted criminal codes effectively give police and prosecutors much of the discretion that judges had to define common law crimes. Hessick points out that the supposed benefits of codification have never materialized, and that our criminal justice system has actually gotten worse since the putative abandonment of common law crimes, not better. Hessick is on Twitter at @CBHessick.

Keywords: criminal law, conventional wisdom, separation of powers, due process, democratic accountability

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